The opinion of the court was delivered by: FOLEY
MEMORANDUM -- DECISION and ORDER
The plaintiff, Rebecca N. Redcross brought this action for money damages in the total amount of twenty-four million dollars, four million compensatory and twenty million punitive, pursuant to Title 42 U.S.C. §§ 1983, 1985(2), 1985(3), 1986, and 1988 by the filing of a detailed complaint alleging illegal and conspiratorial incarceration and imprisonment of the plaintiff by the defendants in violation of the First, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth and Fourteenth Amendments to the United States Constitution. As in most of these civil rights actions, numerous public agencies and officials are named as defendants with the assertion in the title many more are unknown. The case is now before this Court on certain defendants' motion to dismiss the complaint under Rule 12(b) of the Fed.R.Civ.P. for failure to state a claim upon which relief can be granted. The defendants in this motion to dismiss are those represented by the office of the Rensselaer County Attorney: The County of Rensselaer; the Rensselaer County Sheriff's Department; Charles Wilcox, District Attorney for the County of Rensselaer; Eugene Eaton, Sheriff of Rensselaer County; Stephen D. Weber, Michael Danaher, Howard Teal, Investigators for the Rensselaer County District Attorney's Office; and various members of the Rensselaer County Sheriff's Department, who are at this time unknown. The defendants Eaton, Teal, Weber, Danaher, Wilcox, and the Rensselaer County Sheriff's Department have filed appropriate affidavits and move alternatively for summary judgment dismissing the complaint under Fed.R.Civ.P. 56. An answer has been filed to the claims of the plaintiff for the City of Troy, its police department, and police officers denying the allegations of each of the claims in the complaint and setting forth six affirmative defenses, including the one of good faith conduct.
For the reasons stated hereinafter, the motion to dismiss the complaint filed by defendants County of Rensselaer, the Rensselaer County Sheriff's Department, Charles J. Wilcox, Eugene Eaton, Stephen D. Weber, Michael C. Danaher, Howard M. Teal, is granted in regard to the claims alleged in the complaint pursuant to Title 42 U.S.C. §§ 1985(2), 1985(3), and 1986. The motion to dismiss is denied for the claims alleged under Title 42 U.S.C. §§ 1983, 1988. The alternative request for summary judgment is hereby denied.
The murder in the City of Troy of Donald "Digger" Hansen, a member of the Hell's Angel motorcycle gang, was the beginning of the events forming the basis for the filing of this federal court action. It is uncontested that in the late afternoon of December 17, 1978, plaintiff, a seventeen year old female at the time, was visited in her home in Cohoes, New York, by investigators of the Rensselaer County District Attorney's Office, defendants Weber and Teal in the action. The purpose of their visit was to question plaintiff about her knowledge of the Hansen homicide which had occurred in the early morning of that day. Karen Roy, claiming to have been a witness to the homicide, had named plaintiff Redcross as being an eyewitness also. A signed statement made by Roy, which was later recanted, set forth the particulars of the homicide which included several references to the plaintiff. Plaintiff alleges that she told the defendant investigators that she had no knowledge of the homicide. She further alleges that Weber and Teal demanded that plaintiff accompany them to the Troy Police Station for questioning by defendant Wilcox, the Rensselaer County District Attorney.
At the police station, plaintiff claims in the complaint that she was interrogated by defendants Wilcox, Danaher, Weber, and Miller for an extended period of time. Throughout the interrogation plaintiff claims that she was harassed, intimidated, and threatened until she finally was forced to sign a statement which stated that she was an eyewitness to the homicide. Thereafter, it is alleged these defendants advised plaintiff that she was to be held in protective custody as a material witness. A material witness order pursuant to New York Criminal Procedure Law Art. 620, it is claimed that should have been obtained from a judge, was never obtained by the defendants. The complaint alleges that detaining the plaintiff in Holiday Inns in the Capital District Area without the benefit of a material witness order was void, unlawful and unconstitutional. The defendants contend that the plaintiff requested to be put in protective custody because of her great fear of retaliation from the Hell's Angels.
The plaintiff, together with Karen Roy, was first taken to the Troy Holiday Inn. She alleges that:
they were unlawfully imprisoned, kidnapped and incarcerated without the benefit of the procedural safeguards provided in Article 620 of the Criminal Procedure Law of the State of New York and as mandated by the due process and equal protection clauses of the Fifth and Fourteenth Amendments to the United States Constitution.
(Plaintiff's Complaint para. 25).
On December 18, 1978, plaintiff testified before the Grand Jury of Rensselaer County. Plaintiff alleges that various named and unnamed defendants threatened her to make certain that she testified as to being an eyewitness to the homicide, rather than as she claims now to having no knowledge of it. After testifying, the plaintiff was returned to a Holiday Inn where it is alleged she continued to be "unconstitutionally incarcerated and unlawfully imprisoned." (Plaintiff's Complaint para. 26).
On December 20, 1978, it is alleged that defendant District Attorney Wilcox requested a hearing to obtain a material witness order. County Judge M. Andrew Dwyer, it is stated, consented to the hearing. On this evening, plaintiff and Karen Roy were present at the Rensselaer County District Attorney's office and were interrogated by defendants Wilcox, Weber, Danaher, and Teal. The complaint continues that subsequent to the interrogation, defendant Wilcox refused to go forward with the material witness hearing. The plaintiff was then transported back to the hotel at the direction of District Attorney Wilcox. It is asserted that for a period of three to four weeks the plaintiff continued to be held as a material witness at the direction of District Attorney Wilcox. Plaintiff alleges that the District Attorney did so in his investigatory and administrative capacity as District Attorney. (Plaintiff's Complaint para. 27). Plaintiff claims that she was under the guard of various named and unnamed defendants. She claims that all the defendants acted separately and in concert to violate her constitutional rights by forcing her to commit perjury and by holding her against her will without the benefit of a material witness hearing and order. Plaintiff alleges that these and other acts deprived her of several constitutional rights including: freedom of speech, freedom of association, freedom from illegal seizure of her person and effects, and equal protection of the laws.
The defendants' motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b) is designed to test the legal sufficiency of the pleadings. It is well established in the federal system that a complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). Accord, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Weisman v. Le Landais, 532 F.2d 308 (2d Cir. 1976) (per curiam); Escalera v. New York City Housing, 425 F.2d 853, 857 (2d Cir. 1970), cert. denied, 400 U.S. 853, 91 S. Ct. 54, 27 L. Ed. 2d 91 (1970). In deciding a motion to dismiss the factual allegations in the complaint are taken as true. Kugler v. Helfant, 421 U.S. 117, 95 S. Ct. 1524, 44 L. Ed. 2d 15 reh. denied, 421 U.S. 1017, 95 S. Ct. 2425, 44 L. Ed. 2d 686 (1975); Fine v. City of New York, 529 F.2d 70 (2d Cir. 1975).
The threshold requirement of a § 1983 action is that the plaintiff must have been deprived of a right secured by the Constitution and laws of the United States. Baker v. McCollan, 443 U.S. 137, 140, 99 S. Ct. 2689, 2692, 61 L. Ed. 2d 433 (1979). In the complaint, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state law. Gomez v. Toledo, 446 U.S. 635, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980). Based on the pleadings, and the application of settled law at this threshold stage, the plaintiff in this action is entitled to her day in court on her charge of alleged unconstitutional conduct by the defendants under 42 U.S.C. § 1983.
As for the defendant County of Rensselaer, the recent Supreme Court cases in this still evolving field of law, Owen v. City of Independence, 445 U.S. 622, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980) and Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), are controlling as to the liability of municipalities under § 1983. Monell held that local governments were among the "persons" to whom § 1983 applies. The question whether local governments should be afforded some form of official immunity in § 1983 suits was then answered in the Owen case. The law is that a municipality has no immunity from liability under § 1983 flowing from its constitutional violations and may not assert the good faith of its officer as a defense to such liability. Id., 445 U.S. at 650, 100 S. Ct. at 1415. The liability of a municipality, however, will only be for the injury inflicted by the
execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be ...